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District Court 12 February 2021

R v Frederickson-Angell

[2021] NSWDC 22

DrugsFirearms & weapons
WEAPONS OFFENCES YOUTHFUL OFFENDER AGGREGATE SENTENCE

Citation: R v Frederickson-Angell [2021] NSWDC 22
Court: District Court of New South Wales
Date: 12 February 2021
Judge: Mahony SC DCJ

Background

A 22-year-old male offender pleaded guilty to five principal offences arising from a police search of his home on 12 December 2019. The search uncovered knuckleduster weapons, a gel-ball pistol meeting the statutory definition of a firearm, quantities of MDMA and cocaine above the indictable threshold, and over $12,000 in cash. Further items found included magic mushrooms containing psilocin, cannabis, a small quantity of DMT, and commercial fireworks classified as explosives.

The offender had cooperated with police from the outset, alerting them to the presence of drugs when notified of the search warrant and making full admissions during a recorded interview. He had been in custody continuously since his arrest.

The court received psychiatric evidence from Dr G Chew, who diagnosed the offender with a depressive disorder linked to childhood adversity and drug use, a severe substance use disorder currently in remission, and a likely seizure disorder complicated by substance use. The offender had no prior criminal history of substance or violence offences, with only a minor driving infringement recorded against him.

  • What aggregate sentence was appropriate across five serious offences, including two deemed-supply drug charges, a prohibited weapons charge, a firearms charge, and a proceeds of crime charge?
  • To what extent did the offender's youth, mental health diagnoses, drug dependency, and prospects of rehabilitation bear on the sentencing exercise?
  • Whether the aggregate sentence could be served by way of an Intensive Correction Order (ICO) rather than full-time custody.
  • How to deal with the related, less serious offences on a section 166 Certificate under the Criminal Procedure Act 1986.

Decision

Mahony SC DCJ noted the seriousness of the offences collectively, particularly the deemed-supply charges and the possession of weapons capable of causing harm or fear. The court acknowledged, however, that the drug supply appeared to operate at a relatively low level, with the offender supplying to friends to fund his own addiction rather than for substantial financial gain.

Significant mitigating weight was given to the offender's youth (22 at the time of offending), his early guilty plea, his cooperation with police, his genuine remorse, and his diagnosed mental health conditions. The court accepted that the substance use disorder and depressive disorder had materially affected his judgment and contributed to the offending. His prospects of rehabilitation were assessed as good, supported by his employment history, drug abstinence since arrest, and willingness to engage with treatment.

Having regard to those factors, the court determined that an aggregate sentence of three years imprisonment was appropriate for the five principal offences. Critically, the court was satisfied that the sentence could be served by way of an ICO, which requires the offender to remain in the community under supervision and comply with mandatory conditions, including participation in drug and alcohol rehabilitation.

For the related offences dealt with on a section 166 Certificate (simple possession of drugs, handling explosives, and possession of ammunition), the court recorded convictions but imposed no further penalty under section 10A of the Crimes (Sentencing Procedure) Act. Three further charges were withdrawn and dismissed.

Orders Made

  • Conviction recorded for five principal offences: possessing a prohibited weapon (Weapons Prohibition Act 1998 s 7(1)); supply of prohibited drug above indictable quantity (MDMA) (DMTA s 25(1)); possessing an unauthorised pistol (Firearms Act 1996 s 7(1)); supply of prohibited drug above indictable quantity (cocaine) (DMTA s 25(1)); and knowingly dealing with proceeds of crime (Crimes Act 1900 s 193B(2)).
  • Aggregate sentence of 3 years imprisonment imposed in respect of those five offences, to be served by way of an Intensive Correction Order commencing 12 February 2021.
  • Standard ICO conditions imposed: no further offending; submission to Community Corrections supervision.
  • Additional condition: participation in drug and alcohol rehabilitation and treatment as directed by the offender's supervisor.
  • Conviction recorded for related offences on the section 166 Certificate (Sequences 5, 9, 10, 12 and 13) with no further penalty imposed under s 10A.
  • Charges at Sequences 8, 14 and 15 withdrawn and dismissed.
  • Confiscation order made under the Confiscation of Proceeds of Crime Act 1989 for $12,190.
  • Drug destruction order made under DMTA s 39P in relation to all prohibited drugs the subject of the offences.

Key Takeaways

  • An aggregate sentence of three years for a cluster of drug supply, weapons, and proceeds of crime offences was served by ICO where the offender was young, had minimal prior criminal history, had made early admissions and plea, and presented strong rehabilitation prospects.
  • Diagnosed mental health conditions, including a severe substance use disorder and depressive disorder linked to childhood adversity, carried meaningful mitigating weight at sentencing, particularly where a psychiatrist found they had materially affected the offender's judgment.
  • Rationalisation of drug supply as limited to friends rather than strangers, and supply motivated by funding personal addiction rather than profit, were factors the court took into account in assessing the offender's moral culpability, though they did not diminish the inherent seriousness of the offences.
  • Under the section 166 Certificate procedure in the Criminal Procedure Act 1986, related minor offences can be disposed of without separate penalty, with a conviction-only outcome available under section 10A of the sentencing legislation.
  • The $12,190 in cash seized was the subject of a confiscation order under the Confiscation of Proceeds of Crime Act 1989, reflecting the court's finding that the funds were proceeds of drug supply notwithstanding the offender's initial explanation of poker machine winnings.

Legislation and Cases Referenced

Legislation:
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 39P
- Firearms Act 1996 (NSW), ss 4(1), 7(1), 65(3)
- Crimes Act 1900 (NSW), s 193B(2)
- Explosives Act 2003 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 10A, 73
- Confiscation of Proceeds of Crime Act 1989 (NSW)

Cases:
- BP v R [2010] NSWCCA 159
- Bugmy v R
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Chong v R [2017] NSWCCA 185
- Dang v R [2013] NSWCCA 246
- IS v R [2017] NSWCCA 116
- KT v R [2008] NSWCCA 51
- Pearce v R [1998] HCA 57
- R v Gorman [2002] NSWCCA 516
- R v McMaster [2020] NSWDC 673
- R v Pullen [2018] NSWCCA 264
- R v Robertson [2017] NSWCCA 205
- Wany v DPP [2020] NSWCCA 318